McDonnell v. Department of Motor Vehicles

• Decision Date: 03 March 1975
• Citation: 119 Cal.Rptr. 804,45 Cal.App.3d 653
• Court: California Court of Appeals Court of Appeals
• Parties: James Walter McDONNELL, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES of the State of California, Defendant and Appellant. Civ. 34965.

Page 804

119 Cal.Rptr. 804

45 Cal.App.3d 653

James Walter McDONNELL, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES of the State of California, Defendant and Appellant.

Civ. 34965.

Court of Appeal, First District, Division 3, California.

March 3, 1975.

Hearing Denied May 22, 1975.

Evelle J. Younger, Atty. Gen., Gordon Zane, Deputy Atty. Gen., San Francisco, Cal., for defendant and appellant.

Noland, Hamerly, Etienne & Hoss and J. Brian Finegan, Salinas, Cal., for plaintiff and respondent.

GOOD, Associate Justice. ^*

This is an appeal by the Department of Motor Vehicles (DMV Post) from a judgment that mandated DMV to set aside its decision suspending respondent McDonnell's driving license for six months pursuant to California Vehicle Code Section 13353. The section creates an implied consent to a chemical test--blood, breath or urine--on the part of a driver suspected of driving under the influence of intoxicating liquor. The driver may choose which he prefers. He must be informed that his failure to submit to such test or to complete it will result in a six-month suspension of his driving privilege. He must also be advised that he does not have the right to have an attorney present before stating whether he will submit to a test or deciding which to take or during administration of the test. In the event of refusal, upon the officer's sworn statement that there was reasonable cause to believe that such person had been driving under the influence and had refused or failed to complete the test, DMV is required to suspend the driver's license, effective 10 days after written notice to the driver who may demand a hearing which must be held within 15 days after receipt of request therefor.

Respondent had attended a fund raising dinner for a pharmaceutical association. Before that he had taken two Actifed tablets to allow allergic symptoms he was suffering. At a cocktail hour, he had consumed 'about' four scotches. A dinner of beef or steak, pasta and dessert was served at 10:30 p.m., during the course of which he drank 'about' two glasses of wine. He then played cards. He testified that when he started to leave he felt funny, disoriented and confused. At 1:05 a.m. he was stopped en route home. Officer Pina had observed this his driving had been jerky and he was going across the center line of the highway. The officer could smell alcohol on his breath and noted slurred speech and bloodshot eyes. These observations and respondent's responses to routine field tests fully justified Pina's arrest of respondent and the invocation of the procedures of said section 13353. Pina had reasonable cause to believe respondent had been driving while drunk.

The officer read the standard form of admonition. ¹ Respondent said he wanted an attorney. Pina read the form again and explained it. Respondent said he understood and agreed to take the breath test. The officers took him to the police station and on the way the standard Miranda warning was read to him. It was read only once. At the station when another officer had set up the breathalizer he refused to take the test unless an attorney was present. Explanation was again made and he was offered the other two tests but he persisted--no attorney--no test.

Some two years before his arrest, respondent, after jogging, became concerned that he may have had a small stroke or other vascular accident. He had a 'little knowledge' of medical matters which, with a nod to Shakespeare, he said could be a dangerous thing. He consulted a physician and had a three-hour glucose tolerance test. He was told that he had a tendency to low blood sugar and should eat protein before exertion. He did not remember being told that attacks of hypoglycemia symptoms could be brought about by consumption of carbohydrates. The record contains no mention of hypoglycemia at that time. About a month before his arrest, there was an episode of distress after he had consumed numerous cups of coffee with sugar in each during a two-hour session with a colleague. He felt nervous, was trembling and his speech was affected. He stopped his car, went into a restaurant, had a light steak lunch and the episode passed. He decided he would no longer use sugar with coffee. He testified that he was not aware that the Actifed, drinks and dinner he'd had on the night in question could precipitate the attack he suffered.

A few days after his arrest he consulted a physician who gave him a five-hour glucose tolerance test. The doctor's diagnosis, confirmed by a consulting internist, was that respondent suffers from reactive hypoglycemia, i.e., an abnormally small concentration of glucose in the blood stream that, if triggered by the ingestion of carbohydrates--sugar or alcohol--produces flushing, sweating, dizziness, tremulousness, confusion, disorientation and, sometimes, stupor. The doctor said these symptoms closely parallel those of intoxication. To differentiate their cause would require a blood sugar test. The doctor also testified that the condition is extremely aggravated by the consumption of alcohol; that antihistamines (which Actified contains) exacerbate the alcohol effect; that an attack could be triggered by an amount of alcohol insufficient to cause drunkenness; that a severe attack could be expected to occur in two and one-half to three hours after the ingestion of the drinks and dinner described by respondent and that judgment would be impaired during an attack.

The appeal presents the following issues:

1. Is there evidence to support the finding that respondent refused to take any test because of officer-induced confusion?

The trial court found that respondent initially agreed 'to take a breath test and changed his mind because of confusion resulting from the officer's later advice that he had a right to have a lawyer present.' DMV contends this finding has no support in the evidence. It is recognized that juxtaposition of the implied consent warnings (no right to refuse a test and no right to consult with or to have an attorney present during its administration) with the Miranda admonition (right to refuse interrogation and to have an attorney present at all stages of a police interrogation, etc.), is apt to induce confusion. If a driver who has been given Miranda insists on the presence of an attorney before choosing a test the courts have recognized that he may have been confused by the two warnings and the officer's failure to clarify and explain the difference. In such a case the refusal to take a test has been held not to be a refusal within the meaning of said section 13353. (Rust v. Department of Motor Vehicles (1968) 267 Cal.App.2d 545, 547, 73 Cal.Rptr. 366.) The question of officer-induced confusion is one of fact. (Cahall v. Department of Motor Vehicles (1971) 16 Cal.App.3d 491, 497, 94 Cal.Rptr. 182; Rees v. Department of Motor Vehicles (1970) 8 Cal.App.3d 746, 749, 87 Cal.Rptr. 456; Lagomarsino v. Department of Motor Vehicles (1969)276 Cal.App.2d 517, 519, 81 Cal.Rptr. 193.) When a driver who has been given Miranda manifests confusion by asserting his alleged right to an attorney, it is incumbent upon the officer to explain that the right does not apply to these tests. (Smith v. Department of Motor Vehicles (1969) 1 Cal.App.3d 499, 504, 81 Cal.Rptr. 800; West v. Department of Motor Vehicles (1969) 275 Cal.App.2d 908, 910, 80 Cal.Rptr. 385.)

Pepin v. Department of Motor Vehicles (1969) 275 Cal.App.2d 9, 79 Cal.Rptr. 657, holds that mere insistance on an attorney because the driver wants to consult one about which test to take does not establish officer-induced confusion. Neither does being too drunk to understand the proffered information or explanations. (Smith v. Department of Motor Vehicles, Supra, 1 Cal.App.3d 499 at p. 505, 81 Cal.Rptr. 800.) Further Goodman v. Orr (1971) 19 Cal.App.3d 845, 857, 97 Cal.Rptr. 226, holds that lack of understanding engendered by partial intoxication does not affect the finality and effectiveness of refusal. Cahall v. Department of Motor Vehicles, Supra, 16 Cal.App.3d 491 at p. 497, 94 Cal.Rptr. 182, at p. 186 states, 'In determining whether an arrestee's refusal is the result of confusion, the crucial factor is not the state of the arrestee's mind; it is the fair meaning to be given his response to the demand that he submit to the chemical test.'

In the instant case, Miranda was read only once. There was no embellishment such as occurred in Rust v. Department of Motor Vehicles, Supra, 267 Cal.App.2d 545 at 546, 73 Cal.Rptr. 366, where the officer told the driver that he had a right to an attorney 'beginning at that moment;' or in Plumb v. Department of Motor Vehicles (1969) 1 Cal.App.3d 256, 258, 81 Cal.Rptr. 639, 640, where the officer said the driver had a "right to counsel . . . present at all stages of the proceedings" or in other cases where an overly broad phrasing of Miranda is irreconcilable with the implied consent admonitions that are required to be given. But here, there is no inference whatsoever that any police action or statement remotely contributed to any confusion that may have existed in respondent's mind either at the scene of arrest or at the police station. Further, respondent testified that he refused testing because, in his confused state, he thought he would be convicting himself of a felony if he submitted. He pointed to nothing said by an officer that would engender this idea. The finding that respondent's refusal was the result of officer-induced confusion is thus unsupported by the evidence.

2. Where a refusal is the result of confusion arising from a combination of a driver's physical condition and his use of alcohol, should the driver be exempted from the application of Vehicle Code section 13353?

Refusals to take tests have never been excused in California on any ground other than officer-induced confusion reviewed above. Refusals contingent upon the presence of a private physician or attorney are no...